Read the full judgment text of CACC 000032/1998 on BabelCite. This Court of Appeal judgment was delivered on 28 August 1998 before Power, V.-P., Stuart-Moore, J.A. and Pang, J..
Criminal law – application of section 27 of the Organized and Serious Crimes Ordinance, Cap.455 – imposition of enhanced sentence for organized crime – guidelines for approach where the court must deal with enhancement of sentence – R v Law Hoi-fu and others (DCC 32 of 1995), (1996) 2 HKDCLR 1, no longer to be followed. Obiter – where a lesser charge is not proceeded with after a guilty plea has been accepted to a more serious offence, the proper course is not to offer no evidence but to allow the former to lie on the file – Applicant pleaded guilty to two charges of importing unmanifested cargo of cigarettes contrary to section 18(1)(a) of the Import and Export Ordinance, Cap. 60 – Applicant recruited to register Kwan Fu Trading Company and arranged local transportation and porters for DNP cigarette shipments, participating in 7 to 8 occasions for HK$15,000 per month – two shipments involved 8,000,000 and 8,460,000 cigarettes with duty potential of approximately HK$5.78 million and HK$6.12 million respectively – third charge of possession of dutiable goods improperly disposed of by offering no evidence rather than being allowed to lie on the file – prosecution applied under s.27(4) for determination that offences were organized crimes – whether the four-stage approach in R v Law Hoi-fu should continue to be followed – court held the Law Hoi-fu approach was overly complicated because a notional starting point after trial cannot properly be decided without considering all circumstances including the defendant's role and mitigation – new simpler four-step approach set out: (1)(a) determine appropriate starting point having regard to defendant's part, and (b) determine the sentence the court would have imposed taking into account defendant's mitigation and totality; (2) whether the specified offence was an organized crime within section 2; (3) whether the crime calls for enhancement under section 27(11) having regard to information supplied under section 27(2)(a) to (e) or section 27(8) or the general nature of the organized crime; (4) if enhancement is called for, the percentage increase by way of enhancement – approach is adaptable where multiple offences are involved, some of which are not organized crimes – whether 50% enhancement of sentence was excessive – held: no, a 50% enhancement for organized crime of this nature cannot be criticized – sentence of 3 years' imprisonment for cigarette smuggling upheld – whether sentences should have been ordered concurrent given close proximity in date of offences (17 and 21 March 1997) – held: no, partially consecutive sentence was appropriate given the offences were not isolated and both were of very considerable gravity – whether the overall sentence was manifestly excessive or wrong in principle – held: no, the sentence was correct in all the circumstances – court recognized that for some organized crimes (drugs, prostitution, grave smuggling) percentage increases above or well above 50% may be appropriate, citing HKSAR v Cheung Wai-man and others, Cr.App. 666/97 – leave to appeal refused and application dismissed.
Legal issues: Guidelines for approach to enhanced sentencing under s.27 OSCO · Whether 50% enhancement of sentence was excessive · Whether sentences should have been ordered concurrent · Whether the overall sentence was manifestly excessive or wrong in principle
Outcome: Leave to appeal refused; application dismissed. Sentence of 3 years' imprisonment upheld.
Cited by 4 cases